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Judicial Philosophy Appellate Jurisdiction The Supreme Court In nearly all of the cases heard by the Supreme Court, the Court exercises the jurisdiction granted it by Constitution’s Article III. Overview of the Entire Process This authority permits the Court to review – and affirm or (Page 1 of 2) overturn – decisions made by lower courts and tribunals. Within Appellate Jurisdiction, cases are brought before the Selection of cases Supreme Court by one of several methods: Since the Judiciary Act of 1925 ("The Certiorari Act"), the majority 1. By petition for a writ of certiorari, filed by a party to a case of the Supreme Court's jurisdiction has been discretionary. that has been decided by one of the US courts of appeals or by Each year, the court receives approximately 10,000 petitions for the US Court of Appeals for the Armed Forces certiorari, of which approximately 100 are granted review with oral By petition for "certiorari before judgment," which permits arguments, and an additional 50-60 are disposed of without review. the Court to expedite a case pending before a lower Most of the Justice's clerks write a brief for the Justice outlining appellate court by accepting the case for review before the the questions presented, and offering a recommendation as to appellate court has decided it. whether certiorari should be granted. Supreme Court Rule 11 provides that a case may be taken During the Justices' regular conference, the Justices discuss the by the Court before judgment in a lower court “only upon a petitions, and grant certiorari in less than 5% of the cases filed. showing that the case is of such imperative importance as During the 1980s and 1990s, the number of cases accepted to justify deviation from normal appellate practice and to and decided each term approached 150 annually; more require immediate determination in this Court.” recently, the number of cases granted has averaged well 2. By appeal from certain decisions of US district courts in under 100 annually. certain cases involving redistricting of congressional or state Before each conference, the Chief Justice prepares a list of legislative districts, or when specifically authorized in a those petitions he believes have sufficient merit to warrant particular statute. discussion. 3. By petition for writ of certiorari with respect to a decision of a Any other Justice may also add a case to the "discuss list"; state courts (including courts of Puerto Rico and DC), after all cases not designated for discussion by any Justice are state appeals have been exhausted, where an issue of federal automatically denied review. constitutional or statutory law is in question. The Court or a Justice may also decide that a case be "re- The writ is usually issued for cases where the state supreme listed" for discussion at a later conference; court refused to hear the appeal. This occurs, for example, where the Court decides to 4. By a certified question or proposition of law from one of the request input from the Solicitor General of the United US courts of appeals, meaning that the court of appeals States on whether a petition should be granted. requests the Supreme Court to offer guidance on the case “Rule of Four” – The votes of four Justices at Conference will This procedure was once common but is now rarely suffice to grant certiorari and place the case on the court's calendar. invoked; the last accepted for review was in 1981. If the Supreme Court grants certiorari, then a briefing schedule 5. By petition for an "extraordinary writ", such as in matters is arranged for the parties to submit their briefs in favor of or concerning habeas corpus. against a particular form of relief. These writs are rarely granted by the Supreme Court During this time, an individual or group having an interest in a though they are more frequently granted by lower courts. case but is not a party to the case may submit a motion to appear before the court as amicus curiae ("friend of the court"). Original jurisdiction Except for certain specific categories (such as lawyers for Certain cases that have not been considered by a lower court may state and local governments) or where all parties to the case be heard directly by the Supreme Court. The Supreme Court's consent, it is in the Court's discretion whether such motions authority in this respect is derived from Constitution Article III, are granted. which states that the Supreme Court shall have original The grant or denial of certiorari petitions by the Court are jurisdiction "in all cases affecting ambassadors, other public usually issued as one-sentence orders without explanation. ministers and consuls, and those in which a state shall be party." Cases that fall within the Court's original jurisdiction are initiated The original jurisdiction of the Court is set forth in 28 by filing a complaint directly with the Supreme Court, and USC§1251. normally are assigned to a special master appointed by the Court This statute provides that, in the case of disputes between for the taking of evidence and making recommendations, after states, the Supreme Court holds both original and exclusive which the Court may accept briefs and hear oral arguments as in jurisdiction and no lower court may hear such cases. an appellate case. The number of original jurisdiction cases heard by the court is small; generally only 1-2 per term. Filing briefs Because the nine-member Supreme Court is not well- Before oral arguments, the parties to a case file legal briefs suited to conducting pretrial proceedings or trials, outlining their arguments. original jurisdiction cases accepted by the Court are An amicus curiae may also submit a brief in support of a typically referred to a well-qualified lawyer or lower- particular outcome in the case if the Court grants it permission. court judge to conduct the proceedings, and report recommendations to the Court. The Court then considers whether to accept the report or whether to sustain any exceptions filed to the report. Although jury trials are possible in the Court's original jurisdiction cases, there has not been one since 1794, in Georgia v. Brailsford Oral arguments A justice voting with the majority may write a concurring opinion. If the Court chooses to hold a hearing, each side has thirty This is an opinion where the justice agrees with the majority minutes to present its case verbally. holding itself, but where he or she wishes to express views on In exceptional and controversial cases, however, the time the legal elements of the case that are not encompassed in the limit may be extended. majority opinion. In the Court's early years, attorneys might argue a single Justices who do not agree with the decision made by the majority case for hours or days; but as the workload increased, may also submit dissenting opinions, which may give alternative the time available for argument has been restricted. legal viewpoints. Dissenting opinions carry no legal weight or Justices are allowed to interrupt the attorney speaking in order precedent, but they can set the argument for future cases. to ask him or her questions. John Marshall Harlan's dissent in Plessy v Ferguson set down for the majority opinion later in Brown v. Board of Education. After the case is heard, the Justices forming their opinions After granting a writ of certiorari and accepting a case for review, the justices may decide against further review of the case. The conference: assignment of opinions For example, the Court may feel the case presented during oral At the end of a week in which the Court has heard verbal arguments did not present the constitutional issues in a clear- arguments, the Justices hold a conference to discuss the cases and cut way, and that adjudication of these issues is better deferred vote on any new petitions of certiorari. until a more suitable case comes before the court. The Justices discuss the points of law at issue in the cases. In this event the writ of certiorari is "dismissed as No clerks are permitted to be present, which would make it improvidently granted" – saying, in effect that the Court exceedingly difficult for a justice without a firm grasp of the should not have accepted the case. This dismissal is matters at hand to participate. customarily made without explanation. At this conference, each Justice – in order from most to least senior – states the basis on which he/she would decide the case, and a preliminary vote is taken. The Supreme Court The votes are tallied, and the responsibility for writing the opinion in the case is assigned to one of the justices Overview of the Entire Process The most senior Justice voting in the majority (which is the (Page 2 of 2) Chief Justice if he is in the majority) assigns the responsibility of who will be writing the opinion. Customarily, justices who were not seated at the time oral arguments Circulating draft opinions and changing of views were heard by the Supreme Court do not participate in the The justice writing the opinion for the court will produce and formulation of an opinion. circulate a draft opinion to the other justices. Each justice's law Likewise, a justice leaving the Court prior to the handing down of clerks may be involved in this phase. an opinion does not take part in the Court's opinion. Once the draft opinion has been reviewed, the remaining Should the composition of the Court materially affect the Justices may recommend changes to the opinion. outcome of a pending case, the justices will likely elect to Whether these changes are accommodated depends on the reschedule the case for rehearing.
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